Respondents reviewing old planning permission – Respondents determining permission subject to new conditions – Applicant seeking to quash determination – Both parties agreeing determination unlawful – Whether appropriate for court to grant order of certiorari – Application allowed
RMC Roadstone Ltd (Eastern) (RMC) was the assignee of a lease, granting it the right to extract minerals from land covered by a planning permission granted in 1952. In 1997 RMC applied to the respondent mineral planning authority, under the Environment Act 1995 Schedule 13 para 9, to determine the conditions to which the 1952 planning permission should be subject. In February 1998 the respondents issued a notice (the determination) imposing new conditions on the 1952 planning permission.
Following the Court of Appeal’s decision in R v North Yorkshire County Council, ex parte Brown [1998] 4 PLR 29; [1998] PLSCS 18, (confirmed by the House of Lords in [1999] 1 PLR 116; [1999] PLSCS 32), the respondents expressed their concerns in a letter to RMC that, in the absence of an environmental assessment, they did not have the jurisdiction to make the determination. At the hearing, both parties agreed that the principles in Brown applied and that the determination was unlawful and could not stand. The respondents submitted that, notwithstanding the approach in Brown and the unequivocal nature of the decision, it was not necessary for the court to exercise its discretion to make an order of certiorari.
Held The application was allowed.
In the absence of an order for certiorari there was no reason why a third party would know that the determination, which on the face of it was unequivocal and without reservation, was a nullity. Ostensibly there was an extant appeal by RMC. An order for certiorari should be made to prevent the continuance of any ostensible effect in the present case: R v Hendon Justices, ex parte DPP [1994] QB 167 applied.
Martin Kingston QC and David Park (instructed by Ratcliffe & Bibby, of Cumbria) appeared for the applicant; Philip Petchey (instructed by solicitor to Peak District National Park Authority) appeared for the respondents.
Sarah Addenbrooke, barrister
